NCPA - National Center for Policy Analysis

Workers Increasingly Holding Employers Liable for Birth Defects

February 26, 2002

Increasing numbers of firms are being sued by their employees for miscarriages and birth defects they claim are due to toxins in the workplace. Even children who were supposedly injured in the womb are plaintiffs in similar suits.

For several reasons, the trend often puts firms in a damned-if-you-do, damned-if-you-don't legal limbo.

  • While state workers' compensation laws may bar employees from suing their companies for injuries, some courts have upheld the rights of their offspring to sue -- meaning that businesses may be at jeopardy of being sued by plaintiffs as yet unborn.
  • Some companies have tried removing pregnant women from specific jobs which might be hazardous to their health or that of the fetus -- and then been hit with successful discrimination lawsuits.
  • The U.S. Supreme Court ruled in 1991 that battery maker Johnson Controls' practice of restricting women from certain jobs on the basis that lead exposure could harm the fetus amounted to sex discrimination.
  • The discrimination issue aside, the prospect of being sued by defective children is of particular concern -- because the offspring could argue that, as a fetus, it had no choice as to whether it was exposed to potential toxins.

Actually, very little is known about the link between many workplace chemicals and birth defects. About 2 percent to 3 percent of babies are born with major birth defects, and 10 percent of American children have developmental disabilities.

But with more than half of women working outside the home and with some 1 million of them being pregnant at any one time, the field is ripe for study.

Source: Stephanie Armour, "Workers Take Employers to Court Over Birth Defects," USA Today, February 26, 2002.

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